Joseph Kindler was convicted and sentenced to death by a Pennsylvania court for murder. While Kindler’s post-conviction motions were pending, he escaped and remained at large for years. The court then decided on the basis of a discretionally applied fugitive forfeiture rule that Kindler had waived his rights to make these motions when he fled. After Kindler was returned, he moved to reinstate his motions. The Pennsylvania courts denied this motion and Kindler subsequently petitioned the federal court for habeas review, which the district court granted and the circuit court affirmed. In this case the Supreme Court will decide if a federal court may grant a habeas petition when Pennsylvania’s highest court declared that Kindler forfeited his relief claims when he fled. Pennsylvania argues that its fugitive forfeiture rule is an adequate state ground that bars federal review. Kindler, however, claims the discretionally applied fugitive forfeiture rule was not applied with sufficient consistency in Pennsylvania courts to preclude habeas review.

Question presented

After murdering a witness against him and receiving a sentence of death, respondent broke out of prison, twice. Prior to his recapture in Canada years later, the trial court exercised its discretion under state forfeiture law to dismiss respondent's post-verdict motions, resulting in default of most appellate claims. On federal habeas corpus review, the court of appeals refused to honor the state court's procedural bar, ruling that, because “the state court . . . had discretion” in applying the rule, it was not “firmly established” and was therefore “inadequate.”

Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?

Kindler filed post-verdict motions before the verdict was formally imposed. However, Kindler escaped from jail in September 1984, while the post-verdict motions were pending. See Horn, 542 F.3d at 73.Under Pennsylvania’s fugitive forfeiture rule, the trial court exercised its discretion in deciding that Kindler’s flight resulted in a procedural default of most of his appellate claims, including the post-verdict motions. See id.; Brief for Petitioner, Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. at i, 1-2. After Kindler was apprehended in Canada and returned to the United States in 1991, he moved to reinstate his post-verdict motions. SeeHorn, 542 F.3d at 74. The trial court, and subsequently the Pennsylvania Supreme Court, denied his motion, stating that Kindler waived his rights to have the motions considered when he fled. See Commonwealth v. Kindler, 639 A.2d 1, 3 (Pa. 1994); see alsoHorn, 542 F.3d at 74. Kindler appealed this decision, but the United States Supreme Court denied certiorari in 1994. SeeHorn, 542 F.3d at 74-75.

In January 1996, Kindler filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA") and asked the court to review the merits of his case despite his procedural default, but the court again denied him relief. See Kindler, 542 F.3d at 74-75; see also 42 Pa.C.S. §§ 9541–9546 (1988).The Pennsylvania Supreme Court affirmed this decision, stating that Kindler’s own acts prevented him from having the merits of his appeals considered and that granting his PCRA petition would make its previous decisions regarding his forfeited rights meaningless. SeeCommonwealth v. Kindler, 722 A.2d 143, 148 (Pa. 1998).

On March 13, 2000, Kindler filed a federal habeas petition in the United States District Court for the Eastern District of Pennsylvania. SeeKindler v. Horn, 291 F. Supp. 2d 323 (E.D Pa. 2003); see also Horn,542 F.3d at 75. Pennsylvania urged the court to deny the petition, arguing that the state’s fugitive forfeiture rule was an "independent and adequate" state ground for denial. See Horn,542 F.3d at 75. A state procedural rule is an adequate state ground if it is firmly established and consistently applied. Seeid. at 78. The district court, however, found that the fugitive forfeiture rule had not been firmly established when Kindler escaped from jail, and thus could not prevent a federal court from reviewing the federal habeas petition. SeeKindler v. Horn, 291 F. Supp. 2d at 343 (E.D Pa. 2003); see also Horn, 542 F.3d at 75. The United States Court of Appeals for the Third Circuit agreed that the fugitive forfeiture rule had not been a firmly established rule at the time and that Kindler’s flight could not preclude a federal habeas petition. SeeHorn, 542 F.3d at 80.

The Third Circuit then proceeded to review Kindler’s habeas claims, and determined that he must receive either a new sentencing hearing or be sentenced to life in prison because of errors which occurred during the penalty phase of his trial, including ineffective assistance of his counsel, improper jury instructions, and erroneous verdict sheets. See id. at 80, 83, 87. Pennsylvania appealed the decision, and the United States Supreme Court granted certiorari to decide whether the application of the fugitive forfeiture rule forecloses review of a habeas petitioner’s appeals. See Brief for Petitioner at 6; Brief for Respondent, Joseph J. Kindler at 1.

Discussion

Pennsylvania contends that its fugitive forfeiture rule is an adequate state ground barring federal courts from hearing a petitioner’s habeas review as long as the convict was on notice and had an opportunity to raise his claims. See Brief for Petitioner, Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. at 8-9, 29. On the other hand, Kindler argues that Pennsylvania’s fugitive forfeiture rule was not firmly enough established to be an adequate state ground preventing federal review of his case. See Brief for Respondent, Joseph A. Kindler at 28-29.

In this case the Supreme Court will decide if federal courts may review a convict’s habeas petition when the state courts have determined that he has procedurally waived his rights to appeal on the basis of a discretionary, rather than mandatory, procedural rule. See Question Presented. More specifically, the Court will resolve whether Pennsylvania’s practice of giving state courts the discretion to find that a fugitive waived his right to appeal by fleeing was firmly enough established to be an adequate state grounds to bar federal habeas review. See id.The Court will thus have to address if discretionary procedural rules, such as Pennsylvania’s fugitive forfeiture rule, can ever be firmly enough established to qualify as "independent and adequate state grounds" for federal habeas review purposes. Finally, the Court may also touch on the question of whether Pennsylvania’s relaxed waiver practice in capital cases, allowing a state court of appeals to review the merits of an appeal despite procedural bars, is an alternative ground to hold that federal habeas review is not barred.

If the Court decides that a discretionary rule, such as Pennsylvania’s fugitive forfeiture rule, is always an insufficient basis on which to preclude a federal habeas claim, California and twenty-five other states, including Pennsylvania, fear that defendants in criminal proceedings will be able to “flout” a variety of well-established state procedural rules by directly petitioning for habeas. SeeBrief of Amicus Curiae States of California, Arizona, et al. (“States”) in Support of Petitioner at 16-17. The States, as well as the Criminal Justice Legal Foundation (“CJLF”), point out that Congress only intended that habeas review be available for petitioners who had been subject to extreme malfunctions” in state court proceedings. SeeBrief of Amicus Curiae Criminal Justice Legal Foundation (“CJLF”) in Support of Petitioner at 21-23; see also Brief of States at 8-9. Amici argue that Congress intended for habeas review to afford deference to state courts—not to provide a convict with an easy way to circumvent their procedural rulings. SeeBrief of States at 8; Brief of Amicus Curiae Criminal Justice Legal Foundation (“CJLF”) in Support of Petitioner at 25-27. Furthermore, the States believe that federal courts should not second-guess a state court’s decisions in matters involving state law, as such behavior leads to wasteful and open-ended relitigation. SeeBrief of States at 22, 25-26. The CJLF is also concerned that a decision for Kindler in this case would have the perverse effect of discouraging states from providing exceptions to default rules in the interest of fairness in order to prevent their decisions from being undermined by federal habeas review. SeeBrief of CJLF at 27-28.

However, if the Court decides that discretionally applied procedural rules can sometimes account for a sufficiently independent and adequate state ground to bar federal habeas review, Kindler fears the Court will allow obscure and inconsistently applied state procedural rules to preclude review of violations of federal rights in state courts. SeeBrief for Respondent at 27. Kindler is also worried that such a ruling would change the long established adequate state grounds doctrine to require nothing more than “notice and opportunity,” which according to Kindler would have “sweeping” consequences on litigation involving federal laws and rights. Seeid. at 33. Kindler claims that one consequence of a decision for Pennsylvania in this case would be that state court judges, who are elected and thus subject to financial and partisan pressures, could arbitrarily deny federal review of a criminal litigant’s claim on the basis of a discretionary rule; and federal courts could not intervene in the interest of fairness anymore. Seeid. at 37–39. Kindler believes a decision for Pennsylvania in this case would upset the delicate balance that currently exists in regards to the adequate state grounds doctrine, which is engineered to prevent not only unnecessary federal intrusion into state matters, but also guard against instances where the states may ignore a criminal litigant’s claims. Seeid. at 39.

Analysis

The Adequate-State Grounds Doctrine

In the federal habeas corpus review setting, the adequate-state grounds doctrine prevents a federal court from considering the merits of a prisoner's case where a state court has found that the prisoner's claims are waived by an independent and adequate state procedural rule. SeeKindler v. Horn, 542 F.3d 70, 78 (3rd Cir. 2008). A state procedural rule is independent and adequate where it is “firmly established” and “consistently and regularly applied” by state courts. Seeid.However, the Supreme Court has found state procedural rules inadequate where, for example, a state court has employed the procedural rule in a discriminatory manner. SeeBrief for Petitioner, Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. at 15. If a federal court deems a state procedural rule insufficiently “independent and adequate,” the federal court can then proceed to review the prisoner’s habeas corpus petition on the merits. See id. at 14.

Are Discretionary Procedural Rules Automatically Inadequate?

Petitioner Pennsylvania first argues that prior Supreme Court decisions do not support the proposition that discretionary state procedural rules are automatically inadequate. In cases where the state court discretionally applied procedural rules and the Court found the rules inadequate, Pennsylvania contends that the Court based its decision on grounds other than the discretionary nature of the rule. SeeBrief for Petitioner at 15-17. These grounds include both a discriminatory application of a procedural rule, as well as an unpredictably strict application of a procedural rule. See id.Justice Harlan in Sullivan v. Little Hunting Park, Inc. further explains that while procedural rules may give judges the power to make discretionary decisions, judicial decision making is at the heart of how the common law develops. See id. at 16. Some “discretionary” decisions might indeed be “nothing more than judicial formulation of the law.” See id.Thus, Pennsylvania argues, the Court finds procedural rules inadequate not where there is the existence of discretion, but where the state court has used its discretion to improperly deviate from prior rulings. See id.at 15-17.

Moreover, Pennsylvania argues that a discretionary state procedural rule does not inherently violate the proposition that state rules must be “firmly established” and “consistently and regularly applied” in order to be adequate. See Brief for Petitioner at 18. Many federal rules of procedure are applied with discretion without being inconsistently applied, and Pennsylvania contends that the same holds true for state procedural laws. See id. Indeed, the state procedural rule at issue in this case—the fugitive forfeiture rule—has a federal counterpart that is applied discretionally. See id. at 24. Pennsylvania argues that the state courts can apply the state fugitive forfeiture rule discretionally while maintaining consistency in their decisions; indeed a state procedural rule that was applied without exception in appropriate circumstances would be of “pointless severity.” See id. at 18. Pennsylvania also maintains that allowing discretionary federal rules, while finding discretionary state rules inadequate to foreclose further federal habeas appeals, overly interferes with the states’ legitimate interests in employing their own procedural rules. See id. at 22.

Respondent Kindler contends that Pennsylvania’s fugitive forfeiture rule is not firmly established and thus should be considered inadequate under the adequate-state grounds doctrine. See Brief for Respondentat 42. According to Kindler, the Pennsylvania trial court and the Pennsylvania Supreme Court based their decisions to dismiss his post-verdict motions on two different grounds; the trial court used a non-discretionary rule while the Pennsylvania Supreme Court applied the fugitive forfeiture rule, using two newly-established criteria for how the rule should be applied. See id. at 42-43, 45-46. Because he did not get a chance to address in trial court the new criteria which the Pennsylvania Supreme Court used to apply the fugitive forfeiture rule, Kindler argues that the Court should find the fugitive forfeiture rule inadequate. See id. at 44-46.

Furthermore, Kindler argues that the adequacy of a state procedural rule does not depend on whether it is discretionary but rather the “practical operation” of the rule. See Brief for Respondent at 54. Kindler establishes two factors for determining whether a discretionary rule is adequate: 1) whether there are any criteria for guiding the state courts’ discretion and 2) whether the rule is applied consistently. See id.Pennsylvania argues, however, that there is no reason for “requiring substantive fetters on discretion,” such as the criteria which Kindler proposes; federal procedural rules, including the federal fugitive forfeiture rule, operate without these criteria. See Reply Brief for Petitioner, Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. at 12. Moreover, Pennsylvania contends that under Kindler’s “practical operation” rule, a criminal defendant may choose to say nothing in state court, and upon federal review, the defendant need only produce some inconsistency in the state court’s rulings to receive a trial on the merits in federal court. See id. at 18.

Finally, Kindler argues in the alternative that there is no adequate state ground because of Pennsylvania’s “relaxed waiver” doctrine. SeeBrief for Respondent at 57. Kindler asserts that the Pennsylvania Supreme Court has systematically used the relaxed waiver doctrine to reach issues in capital cases whether or not they are preserved for appeal, and the Pennsylvania Supreme Court’s deviation from this rule is an inadequate state ground for denying his post-verdict motions. See id. at 57. Pennsylvania labels this argument as a red herring, however, because out of the ninety cases Kindler uses to support his relaxed waiver doctrine, eighty-nine of the cases were decided after his escape and thus are irrelevant to the adequacy discussion in this case. See Reply Brief for Petitionerat 22.

Would Adequacy of a State Procedural Rule Be Better Determined under a Standard that Considered Whether the Petitioner Was Afforded “Reasonable Notice and Opportunity?”

According to Pennsylvania, instead of finding state rules inadequate simply because they are discretionary, the Court should consider whether the rules provide “reasonable notice and opportunity” to petitioners. See Brief for Petitioner at 25, 29. The Court has stated that the purpose of the adequate-state grounds doctrine is to prevent state courts from evading federal claims brought by petitioners, and Pennsylvania asserts that reasonable notice and opportunity provide adequate protection for federal claims because the rule precludes any concern that state courts are attempting to evade federal claims. See id. at 29. Pennsylvania argues that Kindler had reasonable notice that his escape attempts would result in a waiver of his post-verdict motions. See id. at 36. For example, Pennsylvania states that Pennsylvania courts have consistently refused to allow appeals by fugitives, and Pennsylvania law at the time of Kindler’s escape allowed trial courts the discretion to dismiss post-verdict motions. See id. at 36, 38. Although Kindler argues that he did not have reasonable notice because Pennsylvania courts had decided to hear two former fugitives’ post-verdict motions, Pennsylvania claims that these cases involved entirely different circumstances than Kindler’s case and that the trial courts properly exercised their discretion. See id. at 39. Indeed, the fugitives in these cases were both re-apprehended in a matter of weeks whereas Kindler remained at large for several years. See id. at 3-4, 39-40.

Respondent Kindler rejects Pennsylvania’s proposed standard of reasonable notice and opportunity. See Brief for Respondent at 33. Firstly, Kindler claims that the “reasonable notice and opportunity” standard would not provide adequate protection for federal claims because the state courts would merely pay “lip service” to the rule while continuing to avoid petitioners’ claims. See id. at 35-36. Secondly, Kindler asserts that adoption of Pennsylvania’s standard would preempt consideration of whether state courts had consistently applied a state procedural rule. See id. at 36-37. Kindler avers that such an analysis is necessary because he claims that state judges, who are often elected, are prone to partisan pressures and tend to disfavor certain litigants, especially capital defendants. See id. at 38. Finally, Kindler argues that because Congress did not modify the adequate-state grounds doctrine during its revision of the Anti-Terrorism and Effective Death Penalty Act of 1996, the Court should not revise the doctrine either. See id. at 39-42.

Disputed Interpretations of Lower Court Decisions

Kindler argues that the Pennsylvania maintains inconsistent positions, claiming at one point that the fugitive forfeiture rule is mandatory, and then later claiming that it is discretionary. See id. at 48-49. Pennsylvania points out, however, that Kindler has failed to provide a quotation or citation to Pennsylvania’s briefs to support his argument, and moreover, that Pennsylvania has continuously characterized the fugitive forfeiture rule as discretionary. SeeReply Brief for Petitioner at 1-2. Moreover, Kindler argues that the Third Circuit Court of Appeals did not base its decision on whether the state procedural rule was discretionary, but rather on the basis that the fugitive forfeiture rule was not very firmly established at the time of Kindler’s flight, and that previous case law had held the rule to be inadequate in such a circumstance. See Brief for Respondent at 50. However, Pennsylvania points out that the Third Circuit’s ruling truly is based on only two points of analysis: 1) that the state procedural rule is discretionary and 2) that the rule is therefore inadequate. See Reply Brief for Petitioner, at 7.

Conclusion

In this case, the Supreme Court will decide whether a state procedural rule violates the adequate-state grounds doctrine simply because the rule is discretionary, rather than mandatory. Pennsylvania contends that its fugitive forfeiture rule is an adequate state ground, which bars federal review, and proposes that the Court determine the adequacy of state procedural rules by considering whether they offer “reasonable notice and opportunity.” However, Kindler claims that Pennsylvania’s proposed standard fails to offer sufficient protection for those who seek to file a federal habeas petition. Kindler argues instead that the Court should only uphold state procedural rules that provide criteria which guide state courts’ discretionary decisions. A decision in favor of Kindler in this case would lead to increased litigation, and possibly encroach upon the states’ freedom to implement their own procedural rules without federal oversight. A decision in favor of Pennsylvania would make it more difficult for habeas petitioners to seek federal review of their claims when they may have been subjected to a capricious procedural ruling by a state court judge.